Movant's application for late claim relief is denied.
The proposed claim seeks to recover $500,000 for "physical injuries, including
a fractured right ankle, loss of enjoyment of life, medical expenses and pain
and suffering" sustained on February 7, 2005 as a result of an accident
involving the movant's automobile and a vehicle operated in an allegedly
negligent manner by one Jaime Ian, purported to be a state employee. The
application was initially supported solely by an affidavit of movant's attorney
who lacked direct knowledge of the facts asserted therein and an unsigned,
unverified proposed claim.
Defendant opposed the motion on the grounds that it was not properly supported
by an affidavit of a person with direct knowledge and that the proposed claim
fails to comply with the requirements of CPLR 3016 (g) which states:
In reply movant submitted her own affidavit in which she alleged that she
suffered a serious fracture of her right ankle which required surgery and
resulted in her confinement in a rehabilitation facility. Movant further
alleged that she suffered a permanent loss of use of her right ankle and is
permanently disabled. Attached to her reply affidavit are copies of
non-certified medical reports. Movant's attorney also submitted a reply
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and whether the claimant has any other available remedy".
The motion filed on July 22, 2005 is timely in that a personal injury claim
arising from the allegedly negligent operation of a motor vehicle by a state
employee is governed by the three year Statute of Limitations set forth in CPLR
§ 214 (5).
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
Movant's attorney alleges that the delay in filing the claim stemmed from his
unsuccessful attempts to resolve this matter without litigation (see Paul
F. Dwyer's affidavit, paras 6-10). It is settled that anticipation of a
negotiated settlement is not a reasonable excuse for untimely filing (Society
of N.Y. Hosp. v State of New York, 21 AD2d 733; lv denied 14 NY2d
490; Matter of Professional Charter Servs. v State of New York, 166 Misc
2d 306). No other excuse has been offered and this factor weighs against
granting the motion.
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. In his affidavit in support of the motion movant's
attorney alleges that he promptly reported the accident to the New York State
Office of General Services Bureau of Risk and Insurance Management by
correspondence dated March 2, 2005 and, further, that he contacted the Attorney
General's office on several occasions regarding insurance coverage for the
These unrefuted allegations adequately demonstrate that the State received
timely notification of the essential elements of the claim and was afforded an
opportunity to investigate the circumstances underlying the incident. As a
result it does not appear that the State was prejudiced by the movants' delay in
filing and serving the claim and the factors of notice, opportunity to
investigate and lack of prejudice favor granting the motion (Matter of
Lockwood v State of New York, 267 AD2d 832, 833).
Where a movant's purported injuries arise "out of the use or operation of a
motor vehicle" (Insurance Law § 5102 [b]) movant "must demonstrate that he
[or she] suffered serious injury as defined by Insurance Law § 5102 (d).
(Licari v Elliott
, 57 NY2d 230; Giannattasio v State of New York
Ct Cl, June 25, 2001 [Claim Nos. 97741 and 100199, Motion No. M-63325, UID #
2001-001-034], Read, J.)" (McDowell v State of New York
, Ct Cl, May 17,
2002 [Claim No. None, Motion No. M-64335, UID # 2002-031-018], Minarik,
As noted earlier, support for the motion consisted solely of an attorney's
affidavit and a proposed claim which was neither signed nor verified. Counsel
for the movant obviously lacks direct knowledge of the facts and his allegation
that the movant suffered a serious injury in the underlying automobile accident
is "without evidentiary value and thus unavailing" (Zuckerman v City of New
York, 49 NY2d 557, 563). Additionally, since the proposed claim is not
verified it cannot be utilized by the court as an affidavit pursuant to CPLR 105
(u). Viewed even in the most liberal light movant's submissions cannot be
viewed as having sufficiently established that movant sustained a serious injury
as defined in Insurance Law § 5102 (d).
Nor was that deficiency overcome by the reply affidavits of either the movant
or her attorney. It has been held that an affidavit attesting to a claimant's
version of an accident submitted for the first time in reply to defendants'
opposition papers "was not properly before the court (see Voytek Tech.
v Rapid Access Consulting, 279 AD2d 470)" (Salzano v Korba, 296 AD2d
393, 395). It has further been held that the submission in reply papers of
medical reports (Klimis v Lopez, 290 AD2d 538) or additional documentary
proof of defendant's liability (HSBC Bank USA f/k/a Marine Midland Bank v
Brown, 2002 WL 31011074) should not be considered by the Court since such
submission deprives the defendant of the opportunity to refute such proof
(id). Moreover the medical records attached to movant's affidavit are
neither affirmed nor certified.
As to the final factor, it does not appear that movant has any other remedy
available under the circumstances as alleged in the proposed claim.
Weighing all the factors movant's motion for leave to file a late claim is
denied without prejudice to a properly supported motion.